The Opportunity

The pressure is increasing on Canadian governments to clean-up the federal Access to Information Act (ATI Act) and access-to-information system.

The Conservatives’ broke their election promises by passing a so-called “Accountability Act” containing only 30 measures, and many of those measures are weaker than promised. To see Democracy Watch’s news release about the Conservatives’ broken promises, click here.

In October 2006, a House of Commons committee passed a resolution calling on the federal Justice Minister to introduce a bill keeping the Conservatives’ election promises.

In 2007, and again in February 2009, the NDP MP Pat Martin introduced a private member bill that includes the changes recommended by former Information Commissioner John Reid.

Also in February 2009, current federal Information Commissioner Robert Marleau released his 12 recommendations for strengthening the federal Access to Information Act and enforcement system. The House Access, Privacy and Ethics Committee issued a report in June 2009 endorsing some of the recommendations, but the Conservative government rejected all the recommendations in December 2009.

In September 2010, information and privacy commissioners for governments across Canada issued a call for open government.

Other recent reports by federal Information Commissioners highlighting how the access-to-information system is in crisis have increased the pressure on federal parties to make changes, but they have continued to resist meaningful changes.

In the 2011 federal election, almost all the federal parties made open government promises — however, most of their promises focused on making already publicly available information more easily accessible, not on strengthening the ATI Act. Furthermore the Conservative government has failed to ensure public disclosure of wrongdoing in politics and government as a result of deeply-flawed whistleblower legislation passed in 2006.

The whistleblower protection regime in Canada is in complete disarray having been discredited by former integrity commissioner Christiane Ouimet’s shameful mismanagement of the office. Under the current commissioner, Mario Dion, virtually nothing has been achieved: after five years in office and over 30 million dollars spent the agency has reported only one case of wrongdoing.

As a result, it continues to be very important to let all federal political parties know that Canadians want democratic reforms to open government rules and the enforcement system, and to continue push them to promise such reforms in their election campaign platforms.

The Open Government Coalition, coordinated by Democracy Watch needs your help to push for these key open government changes and to push provincial, territorial and municipal governments to make the same changes.

Background

Government secrecy leads to abuse of the public and waste of the public’s money.

In its Open Government Campaign, Democracy Watch is pushing to close the many loopholes in the federal Access to Information Act (ATI Act) and to make the federal government’s access-to-information system more open and accessible and strictly enforced.

In 1994, then-Justice Minister Allan Rock pledged to strengthen the federal ATI Act, but it was not until early 2001 that then-Prime Minister Jean Chrétien set up a government task force to examine the flaws in the Act and the access system.

Chrétien was responding to pressure from a group of MPs, led by Liberal MP John Bryden, who had set up their own “MPs on Access Committee” and were pushing for changes to the ATI Actand access system. In addition, in spring 2000 the Canadian Association of Journalists held a conference in Toronto inviting citizen groups to work together on the access to government information issue, and the Open Government Canada (OGC) coalition (which Democracy Watch helped coordinate) formed out of that conference and was also pressuring the federal government.

Unfortunately, the government’s Access to Information Review Task Force was made up of public servants from departments which are in a fundamental conflict of interest because they are regulated by the law, failed to disclose key information such as the results of its research, and failed to consult in a meaningful and open way with Canadians.

The Access to Information Task Force’s June 2002 report, which set out 139 detailed recommendations, proposed to weaken the access system in some ways, but did include the following positive general proposals:

any document created by any organization that receives funding from or is connected to the government, or fulfills public interest functions, should be covered by the access law (as in Britain);

the government should establish a clear and comprehensive information management policy and system, including clear powers for access officials and training for all public servants (as in the U.S., Britain and Australia), and;

funding to the access to information system should be increased.

However, the Task Force failed to propose closing the following key gaps in the access law and system identified in OGC’s July 2001 Position Paper(archive website, PDF) (which set out 47 recommendations for changes):

all exemptions under the ATI Act should be discretionary, and limited by a proof of harm test and a public interest override (in contrast, the Task Force overall recommended expansion of the exemptions, including allowing an information request to be denied if the government feels it is a frivolous or vexatious request);

the Information Commissioner should be given explicit powers to order the release of a record (as in B.C., Alberta and Ontario), and to penalize violators of the ATI Act and to require systemic changes in government departments to improve compliance (the Task Force recommended some increase in the Commissioner’s powers, but not in key areas);

a whistleblower protection law should be passed creating an office that whistleblowers can complain to about wrongdoing and that can provide protection from retaliation (as in several U.S. states);

penalties should be created for unjustifiable delays in responses to information requests; and

fees for access should be lower overall, and standardized across the government (in contrast, the Task Force recommended increases in fees).

As is often the case, the Task Force was just a delay tactic, as the federal government failed to act on the Task Force’s report. In fact, in late 2001 the government instead proposed new so-called “anti-terrorism” laws to keep more information secret from the public.

In frustration, Liberal MP John Bryden introduced a private member bill in 2002 to strengthen the ATI Act, however Prime Minister Chrétien and the rest of the Liberal Cabinet ensured that the bill had no chance of passing.

In 2004, NDP MP Pat Martin introduced a private member bill that was almost exactly the same as the John Bryden bill. Unfortunately, Martin withdrew the bill when then-Liberal Justice Minister Irwin Cotler pledged to introduce a government bill. Cotler broke his pledge in spring 2005 when he instead released a discussion paper on access-to-information reform (even though the former government Task Force had discussed the issue more than it ever needed discussing).

As with past Information Commissioners, then-Information Commissioner John Reid strongly criticized the ineffectiveness of the current federal access to information system, and called for reforms.

Then-federal Information Commissioner John Reid released his version of a stronger ATI Act in October 2005.

On November 4, 2005, the federal Conservative Party pledged to pass 52 measures to increase the ethics and accountability of the federal government as the first thing they would do if they were elected, including several measures to strengthen the federal government’s access-to-information system.

The Gomery Commission Inquiry(archive website) into the federal sponsorship scandal also made recommendations to strengthen the ATI Act and access system in its final report released in February 2006.

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Send your letter to key politicians calling for changes to stop excessive secrecy by Canadian politicians, staff and government officials(See list of politicians below)

I am writing today to call on all governments to strengthen access-to-information laws and systems in the following key areas in order to stop excessive secrecy by politicians, staff, and government officials:

any type of record created by any entity that receives significant funding from or is connected to the government (including all politicians’ offices), or was created by the government and fulfills public interest functions, should be automatically covered by access to information laws and systems (as in the United Kingdom);

all exemptions under access to information law should be discretionary, and limited by a proof of harm test and a public interest override (as in B.C. and Alberta);

the access to information law and system should require every entity covered (as in the United Kingdom, U.S., Australia and New Zealand): to create detailed records for all decisions and actions and factual and policy research; to routinely disclose records that are required to be disclosed online in a searchable database (including the daily work schedule and interactions for all politicians (including Senators at the federal level); to assign responsibility to individuals for the creation and maintenance of each record, and; to maintain each record so that it remains easily accessible;

the access to information law and system should allow anyone who does factual or policy research for the government to speak to the media and publicly about the topic, findings and conclusions of their research without being required to seek approval first from anyone (including their superior, the Privy Council, the Prime Minister, a Cabinet minister, or any ministerial staff person);

severe penalties should be created for not creating records, for not maintaining records properly, and for unjustifiable delays in responses to requests;

the Information Commissioner should be given explicit powers under access to information: to order the release of a record (as in the United Kingdom, Ontario, B.C. and Quebec); to penalize violators of the law with high fines, jail terms, loss of any severance payment, and partial clawback of any pension payments, and; to require systemic changes in government departments to improve compliance (as in the United Kingdom)

establish a fully independent, non-partisan appointments commission (with members, appointed by non-governmental organizations like the Canadian Judicial Council, serving fixed terms of office) to conduct a merit-based search for nominees for Information Commissioner (and all other officers of the legislature) and to present a short list to the Cabinet that the Cabinet has to choose from after at least consulting with all federal party leaders (even better, require that a majority of party leaders approve of the Cabinet’s choice);

the Information Commissioner (and all officers of the legislature) must not be eligible for a renewal of their fixed term in office (to ensure that the commissioner does not act as a lapdog to try to get re-appointed by Cabinet for another term);

funding to the access to information system and enforcement should be increased to solve backlog problems instead of increasing administrative barriers such as limiting requests in any way, and fees for access should be lower overall and standardized for every entity covered by the access to information law and system; and

The legislature must be required to review the access to information open government law every 5 years to ensure that problem areas are corrected.

Along with the nation-wide Government Ethics Coalition, made up of 31 organizations with a total membership of more than three million Canadians, I also support key changes to require full disclosure of the financial interests of every politician, political staff, Cabinet appointee and any government official with decision-making power, and to close loopholes that allow for secret lobbying.

Similar changes are needed across Canada to provincial, territorial and municipal laws.

Please let me know what you will do to ensure that these changes are made as soon as possible. I will be deciding which political party to vote for in the next election based on the responses I receive from representatives in each party. I look forward to hearing from you.

Thank you for sending your letter, and please help keep this campaign going until these key democracy reforms are won. To donate now, please click here.

NOTE: Democracy Watch will protect your privacy, and keep you informed about this campaign and others.